District Court New South Wales Medium Neutral Citation: R v Jafary [2016] NSWDC 41 Hearing dates: 21/03/2016 Decision date: 21 March 2016 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: No direction on inferences from "silence" necessary or appropriate. Catchwords: Criminal - Evidence, "special caution", s 89A Evidence Act 1995. Legislation Cited: Evidence Act 1995 Evidence Amendment (Evidence of Silence) Bill 2013 Texts Cited: Stephen Odgers SC Uniform Evidence Law (11 ed) 2014 Thomson and Reuters Category: Consequential orders (other than Costs) Parties: Crown Samir Ali Jafary - accused Representation: Counsel: Mr G Tabuteau – Crown Mr A Bellanto QC - Accused Solicitors: Director of Public Prosecutions – Crown Jackson Law - Accused File Number(s): 2014/165091 Judgment 1. HIS HONOUR: The learned Crown Prosecutor drew to my attention a fact of which I was not aware, as I did not have access to the officer-in-charge's statement, that the accused at one point of the investigation of this matter was administered what is called a "special caution" to represent the effect of s 89A Evidence Act 1995 (hereinafter referred to as 'the Act'). Section 89A of the Act was introduced into the New South Wales Act by the Evidence Amendment (Evidence of Silence) Bill ('the Bill') 2013. It is a provision about which at this point, as far as I am aware, there is very little case law. The most recent edition of Odgers (Uniform Evidence Law (11ed)) has no reference to cases, although it does have some commentary. 2. The situation is that the accused was initially spoken to by police in relation to this matter as I understand it from the evidence on 13 January 2014. On that occasion he was told by the officer that he did not have to say anything unless he wishes, that whatever he did say would be recorded and may be used in evidence, a caution that he understood. I point out that the accused from what I understand of the matter has English as a second language but there is no issue that he does not understand English. 3. Police revisited the accused on 2 June 2014. He was told that the police wish to interview him electronically. He was asked, "Will you be interviewed today?" He answered, "No." I point out at this particular point of the matter, as I understood the statement which I have just received, the accused was in the presence of a legal representative, Ms Gibbons. He was asked these questions: "Will you participate in an electronically recorded interview to officially decline being interviewed about this matter today?" He did not respond but his legal representative advised the officer that her client did not have to answer. The next thing that he was told was: "Samad, you are not obliged to say or do anything unless you wish to do so, but it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say and do may be given in evidence. Do you understand?" 1. The accused did not respond. He was later approached in the custody room and the officer said: "Samad, after being given the special caution in the presence of your lawyer Ms Gibbons and being given time to privately speak with her, would you like to provide an interview about the alleged sexual assault of Brittany Aldred?" 1. The accused replied "No," and shook his head. The conversation was apparently recorded in a notebook. 2. The Crown has raised the matter, quite properly, for discussion in the absence of the jury, as I would understand it for a couple of reasons. One is to address the issue of whether evidence should be led from the officer of the administering of the special caution. As well, as I would understand the matter, in anticipation of issues that may or may not be raised with the accused if he gave evidence in relation to the matter. 3. My understanding of the learned Crown Prosecutor's submission, although he did not refer to any particular authority but referred me to the Second Reading speech of the Attorney General as to the Bill, was that there may be inferences that could be drawn adversely to the accused from exercising his right to silence in the circumstances I have outlined. 4. Section 89A(1) provides: "In a criminal proceeding for a serious indictable offence such unfavourable inferences may be drawn as appear proper from evidence that during official questioning in relation to the offence, the defendant failed or refused to mention a fact: 1. that the defendant could reasonably have been expected to mention in the circumstances existing at the time, and 2. that is relied on in his or her defence in that proceeding." (emphasis added). 1. This particular subsection does not apply unless certain conditions are met (See s 89A(2)). I have heard no argument about this but prima facie it would appear from my understanding of s 89A(2) of the Act that the relevant conditions were met in this particular instance. 2. The first observation to make is that the accused declined to be interviewed and, thus, there was no relevant "official questioning" in relation to the offence other than the administering of the special caution and questions as to whether he wanted to be questioned and whether he understood the caution. 3. One must wonder if an inference was to be drawn, what inference could be drawn from the fact that a person is cautioned and told that they in fact have the right to remain silent if they wish then the person notes the caution without any particular proposition to comment upon. There could be no relevant matter, in the context of the particular questions asked, that the accused could reasonably have been expected to mention in the circumstances existing at the time that may be relied upon in his defence in the proceedings. 4. In my view the terms of s 89A are not engaged because in the context of what questions asked, it could not be seen to be "official questioning" such as to reasonably elicit an answer within the knowledge of the accused that he could reasonably give at the relevant time. 5. The Crown very helpfully provided me with a copy of the Second Reading speech. The view I have formed in relation to the operation of s 89A seems to be confirmed by the terms of the then Attorney General's comments in the Second Reading speech. I am fully aware of the general terms of the statutory construction in the Second Reading speech as an aid to the interpretation of legislation, particularly in the context of any ambiguity. However, it is also a fundamental tenet of the statutory construction that when the words in the statute are plain one would ordinarily expect that the assistance from the Second Reading speech would not be so great. 6. This is what the learned Attorney General said inter alia in the Second Reading speech: "I say it is simply a matter of common sense that a jury should be allowed to consider drawing an unfavourable inference against such a defendant who relies on something at trial the defendant could have mentioned during questioning, subject to certain safeguards. The Bill represents a targeted and balanced response to community concerns and it has been the subject of considerable community, police and government concern. Before I turn to the detail of the Evidence Amendment (Evidence of Silence) Bill, I thank all the individuals and organisations who provided submissions in response to the government's exposure draft Bill. As a result of the submissions received changes have been made in the Bill to reflect a number of issues raised, in particular the Bill provides more detail regarding what amounts to an opportunity to consult an Australian legal practitioner. It also redefines those persons who are exempt from provisions by reason of their inability to understand the consequences of failing or refusing to mention a fact later relied on at trial." 1. Turning to the main "detail of the Bill" he stated that the then Bill as it was presented to Parliament provides that: " … the general prohibition on drawing an unfavourable inference in relation to silence is subject to proposed new s 89A. This new section allows an unfavourable inference to be drawn against certain defendants ... s 89A which sets out the circumstances in which an unfavourable inference may be drawn against the defendant in criminal proceedings for a serious indictable offence and the threshold criteria which must be met ... under the provisions of this Bill an unfavourable inference may be drawn in relation to the failure or refusal to mention a fact during official questioning. It does not require the failure or refusal to be in respect of the specific question or representation from the investigating official". "This will prevent a defendant from using silence to hide behind the absence of a particular question or representation being put to elicit the fact later relied on. This Bill focuses on the defendant being given an opportunity to explain what happened when spoken to by police, the onus placed on the defendant to mention all relevant facts is balanced by the safeguard that it must have been reasonable to mention the fact during questioning. If it is reasonable for it to be mentioned then the defendant should not be permitted to rely on the absence of a particular question being asked in the interview to excuse the failure to mention the information". (emphasis added) 1. Later in the Parliamentary speeches in response to other speakers the Attorney General said: "(The Bill) makes amendments to the Evidence Act to allow unfavourable inferences to be drawn against accused persons who seek to rely on facts at trial that were not mentioned during the questioning of police " ... (the) special caution … explains to the suspect possible consequences of failing or refusing to mention a fact that is later relied on" (emphasis added). 1. Quite clearly by reference to the terms of what the learned Attorney General said in the course of the Second Reading speech and his other comments, the issue of drawing inferences, as difficult and as complicated as it may be to determine what the relevant inference adverse to the accused, is to be seen in the light of the defendant having the opportunity in answer to official questioning to make a particular representation that would disclose a fact or not, by the exercise of silence, that could reasonably be expected to be within the suspect's knowledge at the time of the relevant questioning. 2. I do not propose to go into the discussion in the text of Mr Odgers SC concerning aspects of the matter arising from other terms of the legislation. But in my view having regard to the terms of the section there was no relevant "official questioning" here in respect of which the accused's "silence", which was a refusal to be interviewed, could operate to engage the relevant provision. 3. If I was in error in relation to that interpretation of s 89A as it applies here, in the context of no specific questions being asked of the accused in relation to relevant matters concerning the charge brought against the accused, it would seem that no "unfavourable inference could be drawn as would appear proper from the evidence". It seems inconceivable, in the context of the nature of a special caution being administered to the accused, that the accused could have in those circumstances, "failed or refused to mention a fact" that he could reasonably have been expected to do in the circumstances existing at that time. One could hardly conceive of any reasonable "fact" that might be raised at the time of a special caution being administered indicating an unwillingness to be interviewed, other than perhaps saying the words, "I am not guilty", or "I deny any wrongdoing" or words to that effect, which are so general in themselves as to not establish any particular "fact" other than the accused denied his guilt. A refusal to be interviewed consistent with a suspect's "right" not be interviewed usually allows no opportunity to mention a "fact" or facts that may be relied upon at a later time. 4. It follows that I cannot see in this matter, either by consideration of the expression "official questioning" or of what might be "reasonable" to draw from the accused's unwillingness to be interviewed, having been told that he did not have to participate in an interview, any matter that would constitute an unfavourable inference. 5. It is to be fairly said that these are matters in due course that will be considered by superior courts to my court, such as the Court of Criminal Appeal or the High Court. But I point out that the right to silence still exists as a 'right' and s 89A does not abrogate the right to silence entirely. It clearly provides a situation which the legislature saw as a sensible "compromise", in the context of the debate that the Attorney General referred to, where a person participating in official questioning cannot hide behind the fact of an exercise of silence in the course of that questioning, or failure to disclose a particular fact later disclosed in the conduct of subsequent proceedings. Of course, as the learned author Stephen Odgers SC points out, what particular inference(s) may be drawn will be a matter of debate in each particular case where the issue arises. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 April 2016